People v. Morhy CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of Riverside County · No. RIF149060
- Trial judge
- Ronald L. Taylor (retired judge)
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Judith D. McConnell, Patricia D. Benke
Analysis
The trial court denied Morhy's petition for resentencing under Penal Code section 1170.95, determining he was convicted as a direct aider and abettor and active participant rather than under a natural and probable consequences theory. The Court of Appeal affirmed the judgment after an independent review of the record pursuant to People v. Wende.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court denied the petition.” | de novo | correct | agree with court The appellate court affirmed the denial, finding no arguable issues for reversal after an independent review of the record. The trial court's factual determination that Morhy was a direct aider and abettor and active participant, which precludes eligibility for resentencing under section 1170.95, was supported by the prior appellate opinion and the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying arguable issues or, if none exist, to request the court to independently review the record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying any arguable issues, even if frivolous, and to request the court to independently review the record.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework for appointed counsel appeals. The court performed the required independent review of the record and affirmed the trial court's denial of the resentencing petition based on the established facts of direct aiding and abetting.
How this analysis was made · dispute it
unusual dispositionThe trial court, after appointing counsel, receiving briefing, and holding a hearing, denied Morhy's Penal Code section 1170.95 petition for resentencing on the ground that the prior appellate opinion showed he was tried and convicted as a direct aider and abettor who personally struck the victim with a rock, not under a felony-murder or natural and probable consequences theory. On appeal, counsel filed a Wende brief, Morhy filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of Penal Code section 1170.95 petition for resentencing on the ground that Morhy was convicted as a direct aider and abettor and active participant in the killing, not under a natural and probable consequences or felony-murder theory“At the hearing, based on the prior opinion of this court, it was determined that Morhy was tried as a direct aider and abettor and an active participant in the killing of the victim (Morhy struck the victim with a large rock multiple times while the codefendants stabbed him). The court denied the petition.” | unclear | correct | agree with court Section 1170.95 relief is available only to persons convicted of murder under a felony-murder or natural and probable consequences theory. The opinion recites that the record of conviction, including the prior appellate opinion, showed Morhy was tried as a direct aider and abettor who personally and repeatedly struck the victim with a large rock while codefendants stabbed him. A direct aider and abettor who acts with the intent to kill (or an actual perpetrator acting with malice) is not eligible for relief, so denial was correct on the facts stated. The trial court also followed the statutory procedure by appointing counsel, ordering briefing, and holding a hearing. The appellate court applied Wende independent review rather than articulating a conventional standard of review; the result is defensible, though the opinion does not disclose how the trial court resolved the petition (prima facie stage versus evidentiary hearing) or discuss the then-unsettled question whether a court may rely on a prior appellate opinion at the prima facie stage. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal without merit may file a brief referring to anything in the record that might arguably support the appeal, after which the court conducts its own examination of the record.
The appellate opinion: sound with gaps — The court conducted the Wende/Anders independent review it said it would, considered counsel's flagged issue about natural and probable consequences liability, and reached a result consistent with the stated record showing Morhy was a direct and active participant in the killing. It did not, however, address whether Wende review even applies to appeals from postconviction section 1170.95 orders (an issue then being litigated in published Court of Appeal decisions), did not state the procedural posture of the denial, and incorporated the facts by reference to an unpublished prior opinion, leaving the reader unable to verify the basis for the denial.
How this analysis was made · dispute it
record incompleteOpinion
Filed 10/26/20 P. v. Morhy CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077437
Plaintiff and Respondent, v. (Super. Ct. No. RIF149060)
AARON MATTHEW MORHY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County, Ronald L. Taylor, Judge. (Retired Judge of the Riverside Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2010, Aaron Matthew Morhy and two codefendants were tried by a jury. Morhy was convicted of second degree murder (Pen. Code,1 § 187, subd. (a)). Morhy was sentenced to an indeterminate term of 15 years to life.
1 All further statutory references are to the Penal Code. Morhy appealed his conviction and this court affirmed his conviction in an unpublished opinion filed November 8, 2012. (People v. Veliz, et. al. (Nov. 8, 2012, D059524) [nonpub. opn.].) In January 2019, Morhy filed a petition for resentencing under section 1170.95. The petition alleged he had been convicted on a natural and probable consequences theory or felony murder. The court appointed counsel and ordered briefing. Eventually the court held a hearing on the petition. At the hearing, based on the prior opinion of this court, it was determined that Morhy was tried as a direct aider and abettor and an active participant in the killing of the victim (Morhy struck the victim with a large rock multiple times while the codefendants stabbed him). The court denied the petition. Morhy filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Morhy the opportunity to file his own brief on appeal, but he has not responded. STATEMENT OF FACTS The facts of the underlying offense are fully set forth in our prior opinion. (People v. Veliz, et. al., supra, D059524.) We will not repeat them here. DISCUSSION As we have noted appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel 2 has identified an unbriefed issue regarding whether Morhy could have been tried on a natural and probable consequences theory. We have reviewed the entire record as required by Wende and Anders and considered counsel’s “unbriefed issue.” Our search of the record has not revealed any arguable issues for reversal on appeal. Competent counsel has represented Morhy on this appeal. DISPOSITION The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12